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Bodyguard Productions, Inc. v. Does

United States District Court, D. Hawaii

August 12, 2019

JOHN DOES 1-10 Respondents.



         For the reasons set forth below, the Court AFFIRMS the Order Denying Plaintiff's Motion for Issuance of Letters of Request dated May 13, 2019, ECF No. 16, and Minute Order Denying Plaintiff's Motion for Reconsideration dated June 19, 2019, ECF No. 20, issued by Magistrate Judge Kenneth J. Mansfield on February 28, 2019.


         On March 18, 2019, Plaintiff Bodyguard Productions, Inc. (“Plaintiff”) filed a Complaint (“Compl.”) against Defendant Alex Musante (“Defendant Musante”). ECF No. 1. Plaintiff is the owner of the copyright for the motion picture The Hitman's Bodyguard (the “Work”). Compl. ¶ 7. The Complaint asserts claims against Defendant Musante for direct copyright infringement and contributory copyright infringement. Compl. ¶ 2. In essence, Plaintiff alleges that Defendant Musante used BitTorrent, a peer-to-peer file sharing protocol that is used to distribute large files amongst internet users, to illegally copy the Work onto his computer and redistribute it to other internet users. See Compl. ¶¶ 29-59.

         On April 26, 2019, Plaintiff filed a Motion for Issuance of Letters of Request (“Motion for Letters”), ECF No. 11, seeking third-party discovery from three foreign companies: a Dutch company called LiteServer B.V., a U.K. company called IPSERVER LP, and an Australian Company called Instra Corporation Limited. Motion for Letters at 2, 4. Plaintiff suggests that Defendant Musante used a website called Popcorn Time to illegally pirate the Work, and that the identity of the Popcorn Time website operator is essential to the resolution of Plaintiff's claims. Id. The foreign companies allegedly provide registration services to the Popcorn Time website. Id.

         The proposed letters rogatory, which Plaintiff attached as exhibits to its Motion for Letters, request “the name, contact information, payment details and Internet Protocol login history from April 25, 2016 to the present of the registrant” of the website domain names and See ECF Nos. 11-3, 11-4, and 11-5. The proposed letters rogatory indicate that Plaintiff seeks the identification information of the Popcorn Time website operators so that he can name them as defendants in this lawsuit. See Id. The Court notes that Plaintiff did not include this reason for the proposed third-party discovery in the actual Motion for Letters. Defendant Musante did not oppose Plaintiff's Motion for Letters.

         On May 13, 2019, the Magistrate Judge issued an Order Denying Plaintiff's Motion for Issuance of Letters of Request (the “05/13/19 Order”). ECF No. 16. The Magistrate Judge noted that Plaintiff's counsel was engaged in settlement discussions with Defendant Musante, and that Defendant Musante had not yet appeared in the matter. 05/13/19 Order at 2. The Magistrate Judge concluded that “[i]f Musante admits to, or fails to defend (as is currently the case), the claims against him, the proposed third-party discovery will be unnecessary, ” and for that reason, denied Plaintiff's Motion for Letters. 05/13/19 Order at 2-3.

         On May 21, 2019, Plaintiff filed a Motion for Reconsideration of the 05/13/19 Order (“Motion for Reconsideration”). ECF No. 17. Therein, Plaintiff argued that the third-party discovery was necessary to join the operators of the Popcorn Time websites as defendants and to request an injunction ordering Defendant Musante's internet service provider to block access to the Popcorn Time websites. Motion for Reconsideration at 2. In a Minute Order dated June 19, 2019 (the “06/19/19 Order”), the Magistrate Judge denied Plaintiff's Motion for Reconsideration because Plaintiff raised neither of the aforesaid arguments in the underlying Motion for Letters. ECF No. 20.

         The procedural posture of this case has changed considerably since Plaintiff filed the Motion for Letters. On June 7, 2019, Plaintiff filed a First Amended Complaint (“FAC”). ECF No. 18. The FAC asserts a direct copyright infringement claim against Defendant Musante and intentional inducement and contributory copyright infringement claims against Doe Defendants 1-10. FAC ¶ 1. On June 12, 2019, the Court entered an Order and Stipulation for Dismissal, ECF No. 19, dismissing Plaintiff's claims against Defendant Musante with prejudice pursuant to a settlement agreement. Thus the only defendants remaining in this case are Doe Defendants.

         On June 23, 2019, Plaintiff filed an “Ex Parte Motion for Leave to Request Issuance of Order Granting Letters of Request Prior to a Rule 26(f) Conference and Order Granting Said Letters of Request” (“Early Discovery Motion”). ECF No. 21. Therein, Plaintiff requests the same three letters rogatory as in the Motion for Letters, along with a forth letter rogatory for information from an Icelandic company called ISNIC - Internet á Íslandi hf. See ECF No. 21. Despite having just filed the Early Discovery Motion, on July 2, 2019, Plaintiff timely filed a Notice of Appeal of the Magistrate Judge's 05/13/19 Order and 06/19/19 Order. ECF No. 22.


         Pursuant to Local Rule 74.1, any party may appeal from a magistrate judge's order determining a non-dispositive pretrial matter or, if a reconsideration order has issued, the magistrate judge's reconsideration order on such a matter. The district judge shall consider the appeal and shall set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law. See L.R. 74.1; see also 28 U.S.C. § 626(b)(1)(A); Fed.R.Civ.P. 72(a). The district judge may also reconsider sua sponte any matter determined by a magistrate judge. See L.R. 74.1.

         Under the “clearly erroneous” standard, the magistrate judge's ruling must be accepted unless, after reviewing the entire record, the court is “left with the definite and firm conviction that a mistake has been committed.” United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The district judge may not simply substitute his or her judgment for that of the magistrate judge. See Hinkson, 585 F.3d at 1261. Instead, the scope of review is limited “to determining whether the [] court reached a decision that falls within any of the permissible choices the court could have made.” Id. The magistrate judge's findings pass the clear error standard if they are ...

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